— The life estate of the mother of the plaintiffs in error, out of which the present controversy has grown, was created by the deed of her father, by which the slaves were given to a trustee for her use during her natural life, he “ permitting her to hold and enjoy the same, at his discretion, to hire out the same, paying the monthly or annual increase to my said daughter.” The deed further provides that, at her death, the slaves and other property shall be vested in her children.
After the making of the deed, the lady married the defendant, Simmons, who thereby obtained as her husband, the possession of the slaves mentioned in the deed, and hired two of them out for a year. His wife having died during the year,the first questson necessary to be decided, is, to whom does the proceeds of the hire of the slaves belong.
It is not necessary to enquire into the right, to that portion of it, which accrued from the labor of the slaves, atthe-time of the death of the wife, as it is conceded in the bill, that it belongs to the assignee of Simmons; as by the terms of the deed, the negroes were authorised to be hired, and by the year, it must have been contemplated by the donor, that it might happen, that the right to the slaves would vest in the plaintiffs in error, at a time when they would not be able, from the contract-of hiring, to obtain possession of them. No provision is made in the deed for such a case; but no difficulty could arise, for as the right to the slaves vested at the death of the mother, the right will in equity draw after it, the hire of the slaves for such period.
This would, undoubtedly, be the case, if the trustee, or the mother, had made the contract of hiring. Is the case varied, because the slaves were hired out by Simmons, who took the *202note in his own name, and by assignment transferred it to another. It is obvious that Simmons could acquire no right by a breach of the trust, and it is not easy to conceive on what principle, he could convey a larger interest in the note, than he had himself. His interest certainly ceased a the death of his wife; beyond that, as he had no title to the note, he could convey none ; but the note being an entire thing, a transfer, though it will convey the legal title in the whole note, will only convey the beneficial interest in that part, which belonged to the assignor, and as to the residue, the assignee, who stands in the shoes of the assignor, will be a trustee for those who are beneficially entitled to it.
It is supposed by the Chancellor, that the equity of Kerno-dle, supposing that he had no notice of the title of the complainants, is equal to theirs, and that, having the legal title, he must prevail.
In the case of Smith v. Pettus et al. 1 Stew. & Por., 107; it was held, that the assignee of a note, for valuable consideration and without notice, was affected by a latent equity subsisting between the parties.
The Statute of this State, making choses m action assignable, merely confers on the assignee the legal title, and enables him to sue in his own name; but subjects him to every defence, which existed between the original parties to it.
By analogy it follows very clearly, that Kernodle, the as-signee in this case, is merely clothed with the title of his assignor; if he was a trustee forthe whole amount of the note, the assignee must occupy the same position; and his being a bona fide purchaser without notice, will not vary the case. It follows as a matter of course, that the rule must be the same where the assignee is beneficially interested in but a part of the note.
It is, also supposed that, conceding that the plaintiffs in error have a right to the hire of the slaves after the decease of their mother, they may recover at law, and therefore, Chancery will not take jurisdiction. Without entering into the enquiry, whether such an action could be maintained, it is sufficient to say that the plaintiffs in error have a clear right to ask the interposition of a Court of Chancery. The whole matter in contro*203versy grows out of a technical trust, and those claiming under it, have a clear right to ask its enforcement in a Court of Chancery.
In the case of Bibb v. McKinley et al., 9 Por. 647; it was held that, if one intrudes upon an infant, he shall receive the profits but as guardian, and the infant shall have an account against him in Chancery as guardian, for equity will consider him as a trustee. If, however, the infant so elect, he may treat him as a trespasser; see also, the cases there cited.
The decree must be reversed and the cause remanded for further proceedings.